Copland and Brenner

Table of Contents

1. USCIS Redesigns (Green) Green Card
2. State Department Increases Visa Fees
3. Puerto Rico to Invalidate All Birth Certificates
4. In Brief: Recent Developments

1. USCIS Redesigns (Green) Green Card

   On May 11, 2010, U.S. Citizenship and Immigration Services (“USCIS”) announced that it has redesigned Form I-551, Permanent Resident Card, and that – for the first time in many years - the document will actually be colored green. In its announcement, USCIS stated that all “green cards” would be issued in the new format, effective immediately. The impetus behind the redesign involves the agency’s ongoing efforts to utilize technological advances to thwart counterfeiting, fraud, altering and otherwise tampering with legitimately issued government documents.

   Unexpired green cards will remain valid until their expiration date. Aliens possessing cards with expiration dates should timely seek replacement documents or, if otherwise eligible, may wish to consider seeking naturalization. Green cards without an expiration date will likewise remain valid; however, because they lack the security features of more recent versions, aliens possessing such cards are encouraged to replace them. In either case, it is wise to seek counsel regarding eligibility for naturalization as well as whether there is any risk to lawful permanent resident status before applying for those immigration benefits.

   The redesigned “green card” incorporates several security features, including the following on the front of the card:

   - color shifting ink (gold to green)
   - embedded radio frequency identification (“RFID”) technology
   - tactile laser personalization
   - infogram (holographic image)
   - laser engraved fingerprint
   - unique background design

   Rather than referring to A# (alien number, or alien registration number) on the front of the card, the document will refer to “USCIS #.” This may be confusing to those required to record an individual’s alien number (such as employers completing Form I-9), since the letter “A” is omitted from the number on the front of the document.

   The back of the card will continue to reflect the individual’s alien number. In addition, the back of the card will include a USCIS address to which any lost “green card” should be mailed, along with the following improved security features:

   - micro-image, high resolution pictures of state flags
   - micro-image, high resolution pictures of U.S. presidents
   - personalized embedded hologram (image of the card holder)
   - optical media storage of all digital files, including the card holder’s biometrics

   Additional information is available on the USCIS web site, at www.uscis.gov, and clicking on the link to “News.”

2. State Department Increases Visa Fees

   By interim final rule published in the Federal Register on May 20, 2010, the U.S. Department of State increased fees for processing certain nonimmigrant visa and border crossing card applications. The interim rule follows a proposed rule published on December 14, 2009, and a supplementary notice on March 24, 2010, to which a total of 81 comments were received by the State Department. As stated in the Summary to the interim rule, while the State Department “will implement the proposed changes to the Schedule of Fees contained in this notice and begin collecting the new fees 15 days after publication of this rule, on that same date it will also post additional information regarding the CoSS [Cost of Survey Study] model and fee-setting exercise on its Web site (travel.state.gov) and will accept further public comments for an additional 60 days. The Department will consider these further comments, and whether to make any changes to the rule in response to them, prior to publishing a final rule.” The additional 60-day comment period runs until July 19.

   In the meantime, the interim rule goes into effect on June 4. As explained in the Summary, it “raises from $131 to $140 the fee charged for the processing of an application for most non-petition-based nonimmigrant visas (Machine-Readable Visas or MRVs) and adult Border Crossing Cards (BCCs). The rule also provides new tiers of the application fee for certain categories of petition-based nonimmigrant visas and treaty trader and investor visas (all of which are also MRVs). Finally, the rule increases the $13 BCC fee charged to Mexican citizen minors who apply in Mexico, and whose parent or guardian already has a BCC or is applying for one, by raising that fee to $14 by virtue of a congressionally mandated surcharge that went into effect in 2009. The Department of State is adjusting the fees to ensure that sufficient resources are available to meet the costs of providing consular services in light of an independent cost of service study’s findings that the U.S. Government is not fully covering its costs for the processing of these visas under the current cost structure.”

   Thus, under the interim rule, most nonimmigrant visa and adult border crossing card applications will be subject to a fee of $140. Petition-based nonimmigrant visas, such as those in the H, L, O, P, Q and R categories, will be subject to a fee of $150. Fiancé(e) (K classification) visa applications will involve a fee of $350, and treaty trader (E-1) and treaty investor (E-2) visa applicants will be charged $390.

3. Puerto Rico to Invalidate All Birth Certificates

   While this headline might seem appropriate for April Fools Day, it is in fact real: effective July 1, 2010, all Puerto Rican birth certificates issued prior to that date “shall be void and without any effect whatsoever.” This drastic measure was enacted by Law 191 of 2009, titled “The Law Prohibiting Public and Private Entities from Retaining, Storing, or Holding Certified Copies of Birth Certificates” (“Ley para prohibir la retención, archivo y custodia de copias certificadas de certificados de nacimiento a entidades públicas y privadas”) (“Law 191”). The new law “shall not be construed as cancelling any action initiated prior to the expiration date provided for in this Article validly using a certified copy, issued prior to July 1, 2010, of a birth certificate.”

   Puerto Rico is, of course, a U.S. territory, whose natives have been considered U.S. citizens since the Jones-Shafroth Act of 1917. As the Explanatory Statement to Law 191 states, “[a]ccording to the U.S. Department of State’s Bureau of Diplomatic Security, situations in which the birth certificates of Puerto Ricans have been used are the source of approximately 40 percent of the 8,000 cases of passport fraud it has investigated. The reason is very simple: there are too many certified copies of birth certificates in circulation that are easily accessible to criminals.”

   The statute’s Explanatory Statement notes that, in Puerto Rico, there has been widespread use of birth certificates for common transactions that should not require certified birth certificates (e.g., to establish entitlement to benefits and services such as school enrollment, employment applications, driver licenses, voting cards, loans for major purchases, and signing children up for sports, religious activities, etc.). In 2008, a whopping 860,698 certified copies of birth certificates were issued by the Office of Vital Statistics, which “are kept at schools, public offices, municipalities, churches, and private entities, generating reams of certified documents, often without proper safekeeping procedures or without restrictions on access, and in some cases, these documents have simply been abandoned.” As a consequence, “criminals often steal significant numbers for criminal purposes, such as identity theft or passport fraud.”

   Under Law 191, only a “party concerned” may obtain a certified copy of a birth certificate, to be furnished by the General Vital Statistics Office within the Puerto Rican Department of Health. A “party concerned” is the registrant if he or she is 18 years of age or older, or his/her father, mother, legal representative, legal conservator, guardian, or heirs. In addition, a “party concerned” includes any minor who is, in turn, the father or mother of a minor child for whom the issuance of records relating both to his/her person and to his/her minor child is authorized, or a party indicated by court order.

   An entity legitimately requiring a certified copy of a birth certificate may make a photocopy of the document, but may not retain the original: “When, for any purpose whatsoever, a certified copy of a birth certificate is needed, it shall be sufficient to submit the certified copy of the birth certificate issued by the Vital Statistics Office of Puerto Rico. It shall be permitted, for recording purposes, to retain, hold, or store a photocopy, in electronic or digital form, of the certified copy of the birth certificate, on which it may be certified, in the same copy retained, that this is a true and accurate copy of the certified copy of the birth certificate. However, no certified copy of a birth certificate as that term is defined in this Law shall ever, under any circumstances, be retained.” In fact, “[i]t is prohibited for any public or private entity that is not the party concerned as defined in Article 2(d) of this Law to retain, hold, store, or have in its possession any certified copy of a birth certificate issued by the Vital Statistics Office which any person has been required to submit in order to comply with a given entity’s procedures.”

4. In Brief: Recent Developments

   WHTI – one year later: On June 2, U.S. Customs and Border Protection (“CBP”) issued an assessment of the Western Hemisphere Travel Initiative (“WHTI”), which went into effect on June 1, 2009. The agency’s preliminary analysis is that implementation has had no negative impact on wait times at land border ports of entry, and “has had a positive impact on specific apprehensions” - including those involving false claims to U.S. citizenship (up 25 percent on the southern border), and an increase of 12 percent in the rate of fraudulent documents intercepted at the land border as compared to 2008.

   Under the WHTI, U.S. and Canadian citizens are required to present a single document denoting both identity and citizenship when entering the U.S.A. by land or sea borders from within the Western Hemisphere. There are several types of documents that satisfy WHTI requirements, including a passport, an enhanced driver license (“EDL”) issued by a U.S. state or Canadian province or territory, and certain “trusted traveler” cards. U.S. citizens may also present a passport card issued by the Department of State (“DOS”). Details regarding U.S. passports and passport cards are available on the DOS web site at http://travel.state.gov/passport/passport_1738.html. Information regarding New York State’s EDL is available on the Department of Motor Vehicles web site at http://www.nydmv.state.ny.us/edl.htm.

   It should be noted that there are special rules for certain groups, including children and Native Americans. It should also be noted that documentary requirements for air travel are different than for travel by land or sea, in that (with limited exceptions) a U.S. passport is generally required of U.S. citizens.

   Additional information regarding acceptable travel documents under WHTI is available online at the U.S. Customs and Border Protection page (http://www.cbp.gov/), by clicking on “Border Crossing Document Requirements Have Changed.” Alternatively, information is available by going directly to that CBP link, at http://www.getyouhome.gov/html/eng_map.html.

   H-1B Update: USCIS has announced that, as of May 28, approximately 20,800 “cap eligible” H-1B petitions had been accepted under the regular cap (i.e., petitions filed for aliens who qualify for H-1B status by virtue of a bachelor’s degree or its equivalent). In addition, 8,700 H-1B cap eligible petitions qualifying for the advanced degree exemption had been accepted. “Cap eligible” petitions refer to the number of petitions USCIS has accepted for the particular cap, and includes cases that have been approved or are still pending, but not those petitions that have been denied. Further details are available at http://www.uscis.gov/h-1b_count.